Housh v. Rackley

          ORDER DENYING REQUEST FOR TRANSCRIPTS; GRANTING REQUEST FOR LEAVE TO FILE AMENDED PETITION RE: DKT. NOS. 52, 55

          HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE

         Petitioner, a pro se prisoner, filed this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Now pending before the Court are petitioner's “Motion to Object re: Dkt. 48”, Dkt. No. 52, and petitioner's request that the Court consider a claim that the CDCR has incorrectly calculated his sentence by failing to take into account Propositions 36 and 47, Dkt. No. 55.

         BACKGROUND

         The petition alleges the following claims for federal habeas relief: the trial court erred in denying petitioner's Batson/Wheeler motion; the trial court erred in excluding Dr. Moskowitz's December 2008 psychiatric report; petitioner was prejudiced by the victim's references to his custodial status and prior imprisonment; the trial court erred in admitting evidence of prior domestic violence; the trial court erred in allowing his Montana prior conviction to qualify as a strike; the trial court violated Cal. Penal Code § 654 when it imposed consecutive sentences; the trial court erred in denying his motion for a new trial based upon newly discovered evidence; cumulative error; and sentencing error on the basis of a false conviction. Dkt. No. 1.

         On May 9, 2019, respondent filed an answer, along with a reporter's transcript of the underlying state trial proceedings, with the exception of a sealed transcript of a confidential Marsden hearing held on January 5, 2012. Dkt. Nos. 40-43; Dkt. No. 46 at 1.

         DISCUSSION

         I. Request for Transcripts

         Petitioner has filed a “Motion to Object re Dkt. 48, ” stating that he has not received the transcripts ordered, specifically the sealed transcripts for the January 5, 2012 Marsden hearing. Dkt. No. 52. Petitioner argues that the January 5, 2012 hearing would prove that the trial judge was objectively unreasonable in denying his request for a change of venue due to racial discrimination.^[1] Docket No. 48 is the Court's June 28, 2019 order denying petitioner's request that the Court amend its March 11, 2019 Order (Dkt. No. 38) to require that either the Court or respondent supplement the record with transcriptions of certain exchanges between the trial judge and jurors that he alleged were not transcribed. Dkt. No. 44. In its June 28, 2019 order, the Court denied the request because it found that there was nothing in the record, outside of petitioner's allegation, that supported a finding that certain portions of the court reporter's notes were not transcribed and that, in the event that the court reporter did not record these exchanges, transcription would not be possible. Dkt. No. 48.

         To the extent that petitioner is seeking reconsideration of the Court's June 28, 2019 Order, the Court DENIES plaintiff leave to file a motion for reconsideration. No pre-judgment motion for reconsideration under Local Rule 7-9 may be brought without leave of court. See N.D. Cal. Civil L.R. 7-9(a). The moving party must specifically show: (1) that at the time of the motion for leave, a material difference in fact or law exists from that which was presented to the court before entry of the interlocutory order for which the reconsideration is sought, and that in the exercise of reasonable diligence the party applying for reconsideration did not know such fact or law at the time of the interlocutory order; or (2) the emergence of new material facts or a change of law occurring after the time of such order; or (3) a manifest failure by the court to consider material facts which were presented to the court before such interlocutory order. See N.D. Cal. Civil L.R. 7-9(b). Petitioner has not addressed any of these factors, and his repeated conclusory allegations that the respondent is withholding the transcription of such exchanges are not a basis for granting reconsideration of the Court's June 28, 2019 order.

         To the extent that petitioner is requesting the transcript of the January 5, 2012 Marsden hearing, this request is DENIED. The habeas petition does not contain claims relying on the Marsden hearing, does not contain a challenge to the trial court's denial of a change of venue, and does not allege judicial bias.^[2] The transcript of the January 5, 2012 Marsden hearing is unrelated to the claims raised in the instant action.

         II. Request for Leave to Amend Petition

         Petitioner has requested that the Court consider his claim that the CDCR has incorrectly calculated his sentence by failing to take into account Propositions 36 and 47.^[3] The Court construes this request as a request for leave to amend the petition. Piecemeal amendment of a petition by filing separate pleadings raising separate claims is not appropriate. However, the Court will GRANT petitioner leave to amend his petition to raise this claim. If petitioner wishes to raise this claim, he must file an amended petition that raises both this claim and the claims already raised. Amendment of a petition constitutes waiver of any omitted arguments or claims from previous versions of the petition. See Sechrest v. Ignacio, 549 F.3d 789, 804 (9th Cir. 2008) (filing of new petition cancels out and waives any claims from old petition). If petitioner chooses to file an amended petition, the answer filed by respondent and the traverse filed by petitioner will be rendered moot. Within twenty-eight (28) days from the date of this order, petitioner shall file an amended petition. If petitioner fails to file an amended petition by this date, this action will proceed on the original petition (Dkt. No. 1).

         CONCLUSION

         For the foregoing reasons, petitioner's request for reconsideration of the Court's June 28, 2019 order is DENIED (Dkt. No. 52), petitioner's request for the January 5, 2012 Marsden hearing is DENIED (Dkt. No. 52), and petitioner's request for leave to amend his petition is GRANTED (Dkt. No. 55). Within twenty-eight (28) days from the date of this order, petitioner shall file an amended petition. If petitioner fails to file an amended petition by this date, this action will ...